Dear…,
As you may know, many Peoples’ Democratic Party Members of Parliament (HDP MPs) have been facing criminal prosecution since our immunities had been lifted on 20 May 2016 with a provisional constitutional clause. The prosecution of ten MPs, including myself, continue under pre-trial detention. We reckon that your professional position often makes you an addressee of questions regarding the trial and arrest of MPs in Turkey. The prosecution of MPs deserves assessment from multiple angles. Especially its political dimensions are open to diverse interpretations. However, hereby I would like to share with you a few objective facts and assessments on the legal dimensions of the issue, including our pre-trial detention, with the hope that they would contribute to your understanding, assessment and actions on the matter.
1. The Turkish Constitution guarantees for MPs two different mechanisms of protection. One of this is absolute non-liability organized under Article 83/1, which stipulates that MPs can never be incriminated for their speeches at the parliament and also for repeating these speeches outside the parliament. This non-liability continues for life, even after the end of MPs’ mandates.
Virtually all prosecutorial files and indictments prepared against HDP MPs involve the violation of this Constitutional principle. Most of the files against myself, for instance, incriminate the speeches I delivered at the parliament or repeated outside in public. The courts in charge of our cases ordered our arrest without even feeling the need to investigate this Constitutional dimension of the issue. According to the Constitution, the prosecution cannot even have an investigation against us, let alone the court ordering our pre-trial detention.
2. The second protective mechanism is the non-violability of MPs contained in Article 83/2 of the Constitution. Whereas the non-liability principle entitles MPs to a broad freedom of speech, the non-violability clause precludes prosecution of MPs for their actions and conducts other than speeches for the duration of their mandate. Accordingly, an MP cannot be incriminated for her/his actions and conducts unless his/her immunity is revoked for the rest of the parliamentary term or until the trial process is concluded. While this is the case, the provisional Constitutional Article No 20, which revoked our immunities for the judicial requests raised against us until 20 May 2016, also ensured the continuation of our immunities for the rest of our parliamentary mandate.
A serious mistake was committed here: Our immunities were revoked retrospectively rather than on a forward-moving basis, that is, for the period until the end of our parliamentary term. This arbitrary discretion has created a rather awkward situation: Currently, we both have and do not have legislative immunity. In other words, we are being held in prisons and tried despite the fact that we still hold our immunities. That the courts are trying MPs who still have immunity during the trial process is a severe violation.
For instance, if we commit a criminal act in prison or courtroom, agents of the judiciary cannot even file an investigation against us. They can at most prepare a summary of proceedings for the consideration of GNAT to lift our immunities. Thus, we argue that we cannot be tried because at the present moment our immunities are under the guarantee of the Constitution. Even if we may be tried for the prosecutorial files dated before 20 May 2016, we can be subjected to no judicial measure [i.e. courtroom investigations, arrests] as long as our immunities continue, as they do.
3. When our immunities were lifted, we announced that we would not testify at the courts because we could not be tried for reasons stated above and we did not believe that the partial and unfair judicial system in Turkey could pursue fair trials against us in line with the rule of law. We never said that we did not recognize or defy the law. The government argued that the judiciary was independent and everyone had to trust and assume accountability before the courts.
Barely two months after the lifting of our immunities, Turkey experienced the abortive 15 July coup d’etat. The government responded by purging 4500 people from all echelons of the judiciary, which they had previously praised to be “independent” and “impartial,” with the charge that they were members of “Fethullah Gülen Terror Organization (FETO)” that allegedly plotted the coup. That is to say, the government lifted our immunities and knowingly left HDP MPs to the mercy of FETO courts. Even though many of the prosecutors and judges in charge of criminal proceedings and indictments against us have been dismissed from profession, we continue to be tried on their words [despite the Venice Commission’s request for cases investigated by such prosecutors to be closed and investigated anew]. The AKP’s judiciary is now using the grounds provided by its FETO predecessors to continue with our unlawful trial.
4. The previous decision of the Constitutional Court that MPs cannot be tried under detention during their mandate is violated by both the local courts, which have ordered our pre-trial detention, and the Constitutional Court itself [which, under the pressure of Erdoğan-AKP government, has been refraining from reviewing our appeals for pre-trial detention of MPs]. (See, the Balbay Case at the Constitutional Court).
5. After ten months of imprisonment, the judiciary apparatus, which had hastily arrested us after house raids in the midnight of 4 November 2016, has not yet determined the court and date of the first hearing of the case for which I am under pre-trial detention. This clearly indicates that our hastened arrests rested not on any judicial necessity but on the needs and demands of the government.
6. According to the Constitution, MPs cannot be imprisoned during their parliamentary mandate even if there is a ratified legal conviction against them (Article 83/3). That is, the Constitution orders the postponement of execution of a final legal verdict until after the end of an MP’s parliamentary mandate so as to protect his or her right to office and ensure fulfilment of their legislative duties and responsibilities. This being the case, we have been imprisoned for the past ten months for our speeches that fall within the scope of legislative non-liability.
7. The legal and judicial violations against the HDP are not limited to the cases of our MPs. Over the past one year, more than two thousand HDP members have been imprisoned, including eighty-five mayors, dozens of members of our party assembly, and provincial or district administrators. These are clear indicators of a comprehensive operation to purge our party from the political scene. Our arrests have nothing to do with the law. We are being held captive for our political views, which is a crime that Article 77 of Turkish Penal Code recognizes as a “crime against humanity” bereft of any statue of limitations.
I would like you to consider these facts in your assessment of the legal proceedings pending against HDP MPs and members and take a conscientious stance in line with fundamental principles of law and justice, even if you may not support my or my party’s views and activities.
Sincerely Yours,
Selahattin Demirtaş
HDP Co-Chair
Edirne Prison
7 September 2017